Rule 26

Changes to Federal Rules of Civil Procedure 16(b) and 26(f) are projected to come into effect in December 2025 that have been promulgated to address what proponents refer to as the “‘privilege log’ problem.” December 2025 is still relatively far in the future and whether the proposed amendments to Rules 16(b) and 26(f) are actually adopted is still subject to additional approvals, including approval by the Supreme Court. Nevertheless, bear in mind that nothing in the current Federal Rules of Civil Procedure prevents the parties from implementing the more proactive approach the proposed amendments seek to achieve. 

Sometimes, an argument or position may seem so self-evident or apparent that parties proceed on the assumption that it is correct without ever actually litigating the issue. Should a party decide to contest the issue, however, it can be difficult to find authority in support of the proposition. Such was the case in a recent decision involving an ESI protocol issued by the United States District Court for the Southern District of New York in United States ex rel. M. Frank Higgins & Co. v. Dobco, Inc., No. 22-cv-9599, 2023 WL 5302371 (S.D.N.Y. Aug. 17, 2023).  The parties there disagreed as to how searches for ESI should be conducted. The Court, in resolving their dispute, examined the parties' obligations to produce ESI under Federal Rules of Civil Procedure 26 and 34. 

Now that almost two years have passed since the new Federal Rules of Civil Procedure became law, we have the opportunity to assess the effectiveness of our current strategies and whether we are taking full advantage of the new rules related to discovery.